Editorial: Simulating Free Speech In Virtual Lives

by Alphaville Herald on 04/03/05 at 3:25 pm

“If Peter Ludlow is a journalist,then I’m a railroad tycoon whenever I play Monopoly.”– Jeff Brown, Electronic Arts – Vice President for Corporate Communications

Neal Stewart comments on Eric Goldman’s draft paper ‘Speech Showdowns at the Virtual Corral’, where under-age cyber-prostitutes, free-speech, corporate censorship – and our very own Urizenus Sklar – are the topic of the day.

So what should we do about Second Life residents who are into swastikas, cartoon child porn, sculptures of breast-feeding mothers, upskirt pictures, and calling other people naughty, naughty words in forums?

At ClickableCulture.com Tony Walsh – aka Second Life’s Zero Grace – recently drew our attention to a draft paper by Eric Goldman entitled ‘Speech Showdowns at the Virtual Corral’. Goldman, who is Assistant Professor of Law at Marquette University Law School, discusses in some detail The Sims Online controversy between TSO parent-company Electronic Arts and the SLHerald’s very own Peter Ludlow (aka Urizenus Sklar). Goldman argues that virtual worlds are no ‘different or special from a legal standpoint compared to other types of online services.’ And that he therefore sees ‘no reason why we need to distort First Amendment jurisprudence or create special rules to protect virtual world participants from censorship.’

What was the TSO controversy all about? The Second Life Herald is actually a refugee from Electronic Arts’ MMOG The Sims Online. The newspaper – then known as ‘the Alphaville Herald’ – is the brainchild of Urizenus Sklar, who’s Real Life avatar goes by the name of Peter Ludlow. Ludlow helps the University of Michigan with dwell traffic as a Professor in the Philosophy and Linguistics department.

The Herald didn’t pull its punches back in the TSO days either. Its vivid exposés of the game’s more seedier elements gained international notoriety (CNN, BBC Online, Salon.com) in December of 2003 with the publication of an interview with ‘Evangeline’, who claimed to be an under-age girl in real life working as a ‘cyber-prostitute’ in ‘brothels’ found on TSO. According to Evangeline, her text-based cyber-sex services earned her as much as $50 US per session in the TSO ‘simoleon’ currency.

Within two days of posting the story Electronic Arts terminated Urizenus’ TSO account. Their claimed justification was that Urizenus had committed an obscure URL-deep-linking Terms of Service violation in his in-game profile – an ‘offense’ that many players claim was, and still remains, a common practice in TSO. Furthermore, the account was permanently terminated after only 11 hours into a temporary 72 hour suspension.

Professor Goldman is unsympathetic to Ludlow’s case, compares it to other examples of companies firing their customers, and argues that members of online spaces like TSO (and arguably SL) are not entitled to free-speech rights. His paper is articulate and well-reasoned, and I say that in part because it is and in part because it’ll make me look good in the event that I convince you to disagree with him. We would also do well, however, to remember that his paper is currently only a draft and subject to change.

Taking issue with the term ‘cyber-prostitution’

One of the first points Goldman takes issue with is Urizenus’ use of the term ‘cyber-prostitution’. He writes, “The term “cyber-prostitution” implied that avatars were engaging in simulated sex, but nothing so lurid was taking place—indeed, the game architecture [TSO's] did not permit simulated sex.” The footnote he provides as evidence however is Amy Harmon’s NY Times article. In this article she states in no uncertain terms that, “Sims sex is, indeed, simulated. It consists mostly of players at a keyboard typing into a dialogue bubble displayed above the heads of their pixelated characters, perhaps while using the “slow dance” command or lying on a simulated bed.” Perhaps Goldman’s definition of ‘simulated sex’ is at odds with Amy Harmons’, in that he doesn’t consider there to be a ‘simulation’ if there are no graphics. The implicit argument here is hardly an uncontroversial one – to say that cybersex isn’t the same thing as ‘simulated sex’ – particularly in light of the graphics argument. Are you ‘simulating sex’ if you click on a sex button, then a partner, and your two avatars go at it, but not simulating it when you have two people interacting within a purely text-based, shared sexual narrative?

In any case, perhaps Goldman’s intent is to downplay the significance of Urizenus’ claims in order to make EA’s termination of the account more reasonable. It seems apparent however that Uri’s use of the term ‘cyber-prostitution’ was a play on the term ‘cyber-sex’ and in that context an accurate characterization. Princeton’s CogSci dictionary defines cyber-sex as ‘sexual arousal involving communication on the internet’. ‘Cyber-prostitution’ is therefore a reasonable term to use to describe the act of providing sexual stimulation via the internet for money – be it U.S currency or Simoleons that can be bought and sold for U.S. dollars.

Peter Ludlow as cause célèbre

Another point that Goldman raises is worth addressing, although more of an observation on the issue than an argument. Goldman says that, “Not surprisingly, Ludlow’s claim received some publicity”. But he later comments; “What is unusual, however, is that Peter Ludlow’s story has become a cause célèbre. His termination was covered by the New York Times, the Boston Globe, CNN, the BBC and Salon, and influential professors like Jack Balkin of Yale Law School have supported his cause.”

Goldman here is a bit like a plumber who’s unimpressed with the Apollo 11 because it doesn’t have any toilets. Perhaps the overall tone of media coverage has been in support of Ludlow (that’s an empirical claim beyond the scope of this article) but Goldman, as a lawyer, seems to be ignoring some of the non-legal features of the story. As Salon reported, “Several other games have fan sites or newspapers that cover them, but experts could recall no other instance of clear-cut censorship.” Although the legislative debate around corporate censorship of customers featured large in some corners, the overall debate was not over what the U.S. government should do but what EA did do. The point of interest was the way EA handled customer criticisms and bad PR; some people saw their response as legitimate and others were appalled. In the latter, this was particularly the case with parents who felt that they were entitled to know the things that children – potentially their children – were doing on TSO.

Second Life: Stormy Roentgen with her PG-sim-banned breast-feeding sculpture (nipples).
Second Life: A banned Swastika flanked by also-banned Penii of Grief.

Switching costs and market failure

Goldman suggests that virtual worlds like TSO and SL are no different from other online spaces that are legally allowed to terminate member accounts for whatever reason they choose. He says, “The strongest argument I have heard to distinguish virtual worlds from other online spaces is that virtual world participants invest significantly in their online persona, and this investment creates switching costs for participants that impedes the ability of market forces to reward and punish virtual world providers appropriately. If true, these switching costs may create a market failure requiring regulatory intervention.” Part of his response is that other online communities have comparable switching costs (eg. email, webhosting, blogs) and that he ‘needs more persuasion that the switching costs in virtual worlds exceed these switching costs’.

However, if we visit Goldman’s blog he points out:

Some virtual world participants invest significant time and money in their online characters—earning (or otherwise obtaining) virtual money or items, gaining experience/levels, creating or customizing online "property" (such as houses or widgets that are for sale in the virtual economy) and forming social networks. In some cases, participants purchase items, cash or characters with real cash either directly from the provider or in a secondary market like eBay. All of these "investments" can be lost or diminished if a virtual world provider terminates the individual’s account or otherwise changes the rules or environment of the world.

These costs do not seem comparable to switching costs for email, for example. If I move from Hotmail to Yahoo, I can notify every person in my contact list or inbox accordingly. Anyone who’s written my address on the back of a cocktail napkin with lipstick is going to be out of luck though. With changing webhosts, my domain name will stay the same and the only switching costs will be the actual time taken to set up an account elsewhere and transfer all the webpages. For blogs, I may have to convert the archived posts into a format that is compatible with the new blog. This is generally do-able and in the worst case scenario the old posts can still be salvaged in a readable format. These are all tasks that are likely to take only a few hours at worst.

With Second Life, however, there’s simply nowhere else to switch to (no one else is even close). And even if there was, it seems unlikely that you’re going to be able to take much of your investment with you. An alternative virtual world would need to have a 3D-engine compatible with SL, such that you could somehow export all the objects/scripts you have ever purchased or crafted yourself, and import them into this new world. Even if the residents could sell off their land purchases before switching, they’re not going to be able to somehow get refunds on all their vehicles, buildings, clothing, avatar-attachments and weapons. In the past 8 months residents have spent a total of $L 117,986,520.00 (currently about $US 480,216.94) on direct purchases of in-game objects alone (although to be fair you also need to look at the number of residents, where the money originally came from and where the money has gone). When a lot of these items are crafted, it’s not like a MMORPG where your character gathers some wood and some paint and clicks on ‘Build Piano’. In SL objects are made the same way that designers, builders and artists do it in the real world – piece by piece and usually without blueprints. You can spend hours building individual piano keys by modifying primitive building blocks, and then you can embed an audio script that you have written yourself into each one. Furthermore, SL grants the creators intellectual property rights over these creations. There is also a huge range of complex social investments involved. So, overall the switching costs do seem to be significant and may result in market failure after all.

Telephones, malls and public spaces

Putting Professor Goldman’s paper to one side, the central problem of this great debate seems to be whether or not worlds like Second Life and The Sims Online are the same as real-world community spaces where residents are entitled to free-speech rights that overrule private property rights. The most common tack has been to make an analogy to telephone services or malls.

If you can say whatever you want over the telephone without fear of the phone company canceling your account, why isn’t it the same in online worlds? There are clearly similarities but the features of online worlds seem to strain the analogy to breaking point. Although Linden Labs are primarily hosting-providers, technically they are also content-providers. They create all the land for example, preside over disputes, release currency and make rule-adjustments to prevent inflation. But they are also content-removers. The terrain is wide, complex and controversial; allegedly, sculptures of nipple-exposed breast-feeding mothers are deleted from PG sims, swastikas are deleted from Mature sims, residents can be banned for Nazi-based group names or taking ‘upskirt pictures’ of residents, cartoon child porn, or ‘personal attacks and inflammatory statements’ in secondlife.com forums. Both The Sims Online and Second Life also have ‘any-reason’ termination clauses (“Linden has the right at any time for any reason or no reason to suspend or terminate your Account…”). Check out the Community Standards and Terms of Service.

In the phone analogy – even without the censorship elements – Linden Labs’ presence effectively amounts to a company employee actually participating in the phone conversation, occasionally initiating or guiding the dialogue, chipping in with rejoinders and commentary. So the mall analogy becomes more attractive.

With the mall analogy, however, free-speech takes a hit. In the U.S. there are only six states that have legislation preventing mall staff from removing you if they don’t like what you say. In the others you’re fair game. But in either case, who really cares? Do we actually need these public spaces? In ‘Reclaiming and Remaking Public Space: Toward an Architecture for American Democracy’, Kevin Mattson writes:

The relationship between public space and democracy is crucial. Democracy requires places where citizens can gather together to discuss the issues of the day and work on solving problems ... This space... facilitated the potential gathering of strangers. Only in public can citizens meet and talk with fellow members of society they do not associate with in the realms of work and family life (the two other central places in most people's lives) ... public space cements the necessary basis of democratic citizenship--the ability to associate with other citizens in a civil manner, respect other citizens, and join with them in common projects involving dialogue.

If this is the primary purpose of public spaces, why must they be limited to local areas with grass and gravel? Can’t virtual spaces facilitate civic interaction more effectively than their physical counterparts, by gathering an even larger number of ‘strangers’ from a greater variety of locations, with an even wider range of views? Today it seems that town commons, public squares and parks are rapidly shrinking while privately-owned commercial spaces are becoming all the more pervasive. If so, do these private spaces then somehow become the new public spaces, legally assuming some of the same responsibilities and privileges? Is there a virtual world model that can simultaneously maximize profitability and free-speech, while also minimizing legal liability? Or are the three fundamentally at odds with one another? If so, what impact will this have on democratic societies?

4 Responses to “Editorial: Simulating Free Speech In Virtual Lives”

  1. Tony Walsh

    Mar 5th, 2005

    Neal, another creative, grounded and thorough story. Keep on churning out that intriguing stuff.

  2. Torley

    Mar 6th, 2005

    Wow I really like this! :) Especially that part about the Apollo 11, that was such a GREAT analogy. I’d copy-and-paste it here but when I try to select it, for some reason I end up selecting the whole paragraph. Ohmyes.

    Keep on keeping on, Neal. :D

  3. Urizenus

    Mar 6th, 2005

    Eric Goldman isn’t the sharpest tool in the shed, is he. The essay screams: “I have never set foot inside a social MMORPG but have decided to opine about it anyway.”

    In any case, I don’t think CNN and The Boston Globe etc. were saying that this was a 1st ammendment violation. Rather, I think the point those media outlets were making was this: “hey, wasn’t it really shitty of EA to silence someone for telling us what is going on in a Teen rated game.”

    Sometimes we get caught up in something like the 1st ammendment itself and what it was directly designed to do (prevent federal gov from censoring us), and we forget about the deeper principle that it reflects. To wit: the powererful should not be free to silence those that are critical of their power. Having the de facto ability to silence criticism is not the same thing as having the right to silence criticism. Per norm, legislative bodies and the courts will be slow to recognize these rights, but I guess that shows you the difference between a Jack Balkin and an Eric Goldman. The former tells us where the law is going, and the latter tells us where it has been (without reflecting on why it was there).

  4. Eric Goldman

    Mar 10th, 2005

    It is perhaps dangerous to set foot in this community, because I certainly didn’t write my paper to win points for popularity. Nevertheless, I hope you’ll indulge me with a few brief comments.

    First, I wanted to say thanks to Neal for his great insights. As he points out, my paper was a draft, and I am making some changes to it (in part to respond to the great comments I’ve received in places like this).

    Second, I thought Urizenus’ final observation was interesting. To intelligently discuss a legal problem, we must first establish the current state of the law and identify why it’s defective. I do in fact offer a vision for the future, but I recognize that it’s not very showy because I think the current legal state reaches the correct policy result.


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